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Volume 21 No. 2
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Judge's decisions on evidence may figure in NFL appeal

As the NFL appeals to keep the lockout in place, the league is sure to target federal Judge Susan Richard Nelson’s decisions not to hold evidence hearings on whether the players are suffering irreparable harm and whether the players union’s decertification, or disclaimer, is valid, legal experts said.

While most believe the bar is high for the league to get the 8th U.S. Circuit Court of Appeals to overturn Nelson, who ruled to end the lockout, experts of various affiliations said the judge appeared to rely heavily on statements from the players’ side without fully exploring the factual record. While this may not be enough, the NFL is nevertheless likely to contend Nelson failed to consider all the facts in applying the law.

“On disclaimer, Judge Nelson relied on well-developed legal precedent, but the NFL is likely to argue that it was denied the opportunity to develop the factual record applicable to that legal precedent,” said player lawyer David Cornwell, a finalist for the NFLPA executive director position in 2009, who still thinks the NFL has a difficult task to overturn her ruling.

The standard for a valid disclaimer is that it must be unequivocal and adhered to, he said. Only by disclaiming could the players then sue under antitrust law.

“Judge Nelson concluded that the disclaimer was valid, but the NFL may argue that Judge Nelson erred when she did not give the NFL an opportunity to provide facts to show that the disclaimer may not be adhered to,” Cornwell said. That could be viewed as both as an abuse of discretion and as an error as a matter of law, he said.

Similarly on irreparable damages, a necessary requirement to grant an injunction, Nelson relied heavily on affidavits from player agents and former NFLPA player representatives that a lockout in April was a heavy burden. She did not take up league lawyer David Boies’ request during oral arguments that the issue deserved its own hearing.

She seemed to anticipate this argument in her rejection of a stay, writing, “This Court came to that conclusion based on the extensive affidavit evidence submitted by the Brady Plaintiffs [on irreparable damages]. The NFL offered little, if any, evidence to directly rebut the Players’ affidavits, either in response to the motion for a preliminary injunction, or here.”

Some legal experts were troubled by her decision on disclaimer, when she ruled the intent of the union is unimportant as long as it effectively disbands. The league argues the disclaimer is a tactic, but Nelson brushed aside that concern.

For John Goldman, a labor lawyer with Herrick Feinstein, Nelson’s ruling imperils sports labor.

“You are trashing the law on collective bargaining as we know it,” he said. “That just defeats the purpose of having unions and collective bargaining if the union can simply say we don’t want to do this.”

But Steve Bradbury, who argued for practice squad players in the 1996 Supreme Court case Brown v. NFL, said once Nelson accepted the disclaimer, the players had won. If there is no union, there can be no collective bargaining, he said, and so no lockout.

But the point the 8th Circuit may look at is how effectively Nelson factually examined the disclaimer, the experts said. For example, in its appeal last week to the 8th Circuit, the NFL included exhibit after exhibit of player quotes indicating that the decertification was only a tactic and that they still wanted to bargain. Whether that is relevant, the league will contend that Nelson failed to establish the facts before citing the law, the legal experts predict.